ABSTRUSITY-- Three words in the Spectrum Act are a legal land mine waiting to go off: “All reasonable efforts.” If Congress is endowed with a singular gift, it is the ability to write legislation with just enough ambiguity to keep it tangled up in the court until the members retire.
Specifically, the Spectrum Act states that the Federal Communications Commission “shall make all reasonable efforts to preserve, as of the date of the enactment of this Act, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69….”
Consider how it likely started out as, “the FCC shall preserve,” and how easily the modification could have been slipped in.
That sentence is the linchpin of spectrum auction design, because how it is applied will determine the coverage area of every TV station in the country. The commission has signaled its intent. Its spectrum auction proposal includes three possible interpretations: Stations accept more interference; cover the same households, or reach the same number of people as they do now. It favors No. 3: “We believe that interpreting the statute as referring to total, rather than specific, population served would satisfy the statutory mandate.”
Then five months later, the agency quietly proposed changing the population data used in OET-69 from the 1990 U.S. Census figures used in the last DTV repack to 2010 figures, which show a 24 percent increase during the 20-year period. The data-set swap could result in reduced coverage areas for all TV stations, so they could be repacked in even less spectrum than what would be necessary under OET-69 as they know it.
The National Association of Broadcasters has already questioned the legality of changing OET-69 now, but support from Capitol Hill on the point is unlikely. There is therefore but one other avenue for recourse.
Stay tuned for “Judge Judy.”